The UK’s Judicial Review and Courts Act 2022 introduced into statute certain remedies for use where unlawfulness had been found on the part of a public authority or decision-maker carrying out public functions. These remedies allow for such unlawfulness to be deemed lawful, including where the courts consider that remedying an unlawful decision would negatively impact third parties or good administration. When this legislation was under consideration in the UK’s Parliament, there was considerable concern from a number of environmental organisations that such remedies would prohibit the obtaining of redress where environmental harm had occurred. This analysis examines the nature of the new remedies introduced by the Act, how domestic courts may use them, and how those involved in environmental or climate litigation against public authorities might adapt their approach in light of these new statutory powers.
{"title":"Environmental Challenges to UK Public Authorities: The Impact of the Judicial Review and Courts Act 2022","authors":"Patrick Kenny","doi":"10.1093/jel/eqad023","DOIUrl":"https://doi.org/10.1093/jel/eqad023","url":null,"abstract":"The UK’s Judicial Review and Courts Act 2022 introduced into statute certain remedies for use where unlawfulness had been found on the part of a public authority or decision-maker carrying out public functions. These remedies allow for such unlawfulness to be deemed lawful, including where the courts consider that remedying an unlawful decision would negatively impact third parties or good administration. When this legislation was under consideration in the UK’s Parliament, there was considerable concern from a number of environmental organisations that such remedies would prohibit the obtaining of redress where environmental harm had occurred. This analysis examines the nature of the new remedies introduced by the Act, how domestic courts may use them, and how those involved in environmental or climate litigation against public authorities might adapt their approach in light of these new statutory powers.","PeriodicalId":46437,"journal":{"name":"Journal of Environmental Law","volume":"17 6","pages":""},"PeriodicalIF":1.9,"publicationDate":"2023-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139269766","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract This analysis discusses the advisory opinion requested by the UN General Assembly from the International Court of Justice (ICJ) in April 2023 on the obligations of states in respect of climate change. Although the ICJ’s decision cannot be expected before the autumn of 2024, important procedural anomalies have arisen, which require due regard to ensure that the ICJ can provide its advisory opinion in possession of sufficient information. In particular, firstly, not all Small Island Developing States have been notified by the ICJ and invited to submit written statements and, secondly, the amicus curiae provided by NGOs will be not accessible to the public. This analysis argues that all Small Island Developing States should have the opportunity to take part in the proceedings and the amicus curiae submitted by NGOs to the ICJ should receive proper publicity.
{"title":"The Obligations of the States in Respect of Climate Change Before the International Court of Justice","authors":"Vanda Lamm","doi":"10.1093/jel/eqad033","DOIUrl":"https://doi.org/10.1093/jel/eqad033","url":null,"abstract":"Abstract This analysis discusses the advisory opinion requested by the UN General Assembly from the International Court of Justice (ICJ) in April 2023 on the obligations of states in respect of climate change. Although the ICJ’s decision cannot be expected before the autumn of 2024, important procedural anomalies have arisen, which require due regard to ensure that the ICJ can provide its advisory opinion in possession of sufficient information. In particular, firstly, not all Small Island Developing States have been notified by the ICJ and invited to submit written statements and, secondly, the amicus curiae provided by NGOs will be not accessible to the public. This analysis argues that all Small Island Developing States should have the opportunity to take part in the proceedings and the amicus curiae submitted by NGOs to the ICJ should receive proper publicity.","PeriodicalId":46437,"journal":{"name":"Journal of Environmental Law","volume":"24 2","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135976776","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Green Peafowl stands as a landmark lawsuit in China where environmental NGOs successfully halted a project threatening habitat of endangered species. By examining this case, this analysis evaluates the promise and limitations of China’s civil environmental public interest litigation (EPIL) in protecting habitat. Under civil EPIL’s broad and flexible framework, environmental NGOs can convince the courts that a government-approved project would destroy the ‘biological habitat’ for endangered species and hold project developers accountable. By arguing that the environmental impact assessment (EIA) institution is jointly liable by preparing a flawed report, environmental NGOs can also use civil EPIL as an alternative avenue to challenge the quality of an approved EIA report. However, the timing of judicial intervention, uncertainties of litigation outcomes, the scope of protection, and the court’s attitude towards EIA claims limit the effectiveness of civil EPIL. This analysis highlights the need to address regulatory failures revealed by Green Peafowl.
{"title":"Protecting the Habitats of Endangered Species Through Environmental Public Interest Litigation in China: Lessons Learned from Peafowl Versus the Dam","authors":"Juan Chu","doi":"10.1093/jel/eqad031","DOIUrl":"https://doi.org/10.1093/jel/eqad031","url":null,"abstract":"Abstract Green Peafowl stands as a landmark lawsuit in China where environmental NGOs successfully halted a project threatening habitat of endangered species. By examining this case, this analysis evaluates the promise and limitations of China’s civil environmental public interest litigation (EPIL) in protecting habitat. Under civil EPIL’s broad and flexible framework, environmental NGOs can convince the courts that a government-approved project would destroy the ‘biological habitat’ for endangered species and hold project developers accountable. By arguing that the environmental impact assessment (EIA) institution is jointly liable by preparing a flawed report, environmental NGOs can also use civil EPIL as an alternative avenue to challenge the quality of an approved EIA report. However, the timing of judicial intervention, uncertainties of litigation outcomes, the scope of protection, and the court’s attitude towards EIA claims limit the effectiveness of civil EPIL. This analysis highlights the need to address regulatory failures revealed by Green Peafowl.","PeriodicalId":46437,"journal":{"name":"Journal of Environmental Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134948336","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract The wide-ranging adverse changes caused by hydropower in freshwater ecosystems call for implementing environmental responsibility on the part of the hydropower sector. This article analyses the interplay between the two key EU legal instruments in this respect: the revision of out-dated hydropower permits required under the EU Water Framework Directive and operator liability for water damage under the Environmental Liability Directive. To complement this analysis, the article provides a concrete example of the two directives’ combined framework, or at least its multiple implementation challenges, using the specific case of one Member State; Finland. The article concludes that, although the two instruments have the potential to offer a rather powerful framework for environmental responsibility, realising this policy aspiration may be seriously undermined by problems in implementation. The insights presented call attention to the applicable means on both national as well as EU levels to rectify the situation.
{"title":"Uncharted Interplay and Troubled Implementation: Managing Hydropower’s Environmental Impacts under the EU Water Framework and Environmental Liability Directives","authors":"Mari Pihalehto, Suvi-Tuuli Puharinen","doi":"10.1093/jel/eqad032","DOIUrl":"https://doi.org/10.1093/jel/eqad032","url":null,"abstract":"Abstract The wide-ranging adverse changes caused by hydropower in freshwater ecosystems call for implementing environmental responsibility on the part of the hydropower sector. This article analyses the interplay between the two key EU legal instruments in this respect: the revision of out-dated hydropower permits required under the EU Water Framework Directive and operator liability for water damage under the Environmental Liability Directive. To complement this analysis, the article provides a concrete example of the two directives’ combined framework, or at least its multiple implementation challenges, using the specific case of one Member State; Finland. The article concludes that, although the two instruments have the potential to offer a rather powerful framework for environmental responsibility, realising this policy aspiration may be seriously undermined by problems in implementation. The insights presented call attention to the applicable means on both national as well as EU levels to rectify the situation.","PeriodicalId":46437,"journal":{"name":"Journal of Environmental Law","volume":"55 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134948334","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In February 2023, ClientEarth filed a derivative claim in the High Court of England and Wales against the Board of Directors of Shell plc for alleged breaches of their duties under the Companies Act 2006. According to ClientEarth, Shell’s Board of Directors has failed to put in place an energy transition strategy consistent with the Paris Agreement, increasing the exposure of Shell plc to climate risks and hindering its long-term commercial viability. This analysis assesses the legal grounds of ClientEarth’s claim in light of the UK’s company law framework, and the High Court’s judgements of May and July 2023 dismissing ClientEarth’s application. It argues that, despite the lack of solid legal grounds for ClientEarth’s derivative claim, this case may serve to advance climate-related goals. More generally, the analysis reflects on how this dispute evidences the growing gap between the objectives of environmental law on the one side and those of company law on the other side.
{"title":"ClientEarth v Shell plc and the (Un)Suitability of UK Company Law and Litigation to Pursue Climate-Related Goals","authors":"P. Iglesias-Rodríguez","doi":"10.1093/jel/eqad029","DOIUrl":"https://doi.org/10.1093/jel/eqad029","url":null,"abstract":"\u0000 In February 2023, ClientEarth filed a derivative claim in the High Court of England and Wales against the Board of Directors of Shell plc for alleged breaches of their duties under the Companies Act 2006. According to ClientEarth, Shell’s Board of Directors has failed to put in place an energy transition strategy consistent with the Paris Agreement, increasing the exposure of Shell plc to climate risks and hindering its long-term commercial viability. This analysis assesses the legal grounds of ClientEarth’s claim in light of the UK’s company law framework, and the High Court’s judgements of May and July 2023 dismissing ClientEarth’s application. It argues that, despite the lack of solid legal grounds for ClientEarth’s derivative claim, this case may serve to advance climate-related goals. More generally, the analysis reflects on how this dispute evidences the growing gap between the objectives of environmental law on the one side and those of company law on the other side.","PeriodicalId":46437,"journal":{"name":"Journal of Environmental Law","volume":" ","pages":""},"PeriodicalIF":1.9,"publicationDate":"2023-08-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42226757","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Darwall & Anor v Dartmoor National Park Authority [2023] EWHC 35 (Ch) is a case framed by a particular narrative about national parks. This narrative exists separately from the explicit terms of the National Parks and Access to the Countryside Act 1949. Whilst a case comment about narrative seems unconventional, it is fundamental to understanding this case. This is because narrative shapes the legal questions asked in the case and so understanding narrative is essential to understanding the case itself. This comment places Darwall in its legal historical context, linking it to two legal questions from the case: the question of jurisdiction and the discussion of public access as a means of dispropriation. This illustrates that the legal questions in Darwall are asked as much because of the narrative that frames them, as they are of their explicit grounding in the legislation.
{"title":"Narrative and Story-telling in Darwall & Anor v Dartmoor National Park Authority","authors":"Rhiannon Ogden-Jones","doi":"10.1093/jel/eqad026","DOIUrl":"https://doi.org/10.1093/jel/eqad026","url":null,"abstract":"\u0000 Darwall & Anor v Dartmoor National Park Authority [2023] EWHC 35 (Ch) is a case framed by a particular narrative about national parks. This narrative exists separately from the explicit terms of the National Parks and Access to the Countryside Act 1949. Whilst a case comment about narrative seems unconventional, it is fundamental to understanding this case. This is because narrative shapes the legal questions asked in the case and so understanding narrative is essential to understanding the case itself. This comment places Darwall in its legal historical context, linking it to two legal questions from the case: the question of jurisdiction and the discussion of public access as a means of dispropriation. This illustrates that the legal questions in Darwall are asked as much because of the narrative that frames them, as they are of their explicit grounding in the legislation.","PeriodicalId":46437,"journal":{"name":"Journal of Environmental Law","volume":" ","pages":""},"PeriodicalIF":1.9,"publicationDate":"2023-08-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46305303","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article explores the relative neglect by environmental NGOs—at least until recently—of the middle, public participation, pillar of the Aarhus Convention. This can be seen in litigation, as well as in political advocacy, both domestically and at the international (Aarhus) level. Interviews with some key actors in this area and analysis of published documents provide insights into NGO decision-making. The limits of law become clear—Aarhus rights are made real only through the commitment of governments and civil society. A nuanced combination of internal and external factors contributes to explaining the lack of NGO attention to Aarhus’ middle pillar. We may also see some indications that NGOs envisage participation as a process properly dominated by expertise. This is far from uniform, however, and other parts of the community clearly appreciate and value the significance of lay participation in the environmental arena.
{"title":"NGOs Shaping Public Participation Through Law: The Aarhus Convention and Legal Mobilisation","authors":"C. Abbot, Maria Lee","doi":"10.1093/jel/eqad030","DOIUrl":"https://doi.org/10.1093/jel/eqad030","url":null,"abstract":"\u0000 This article explores the relative neglect by environmental NGOs—at least until recently—of the middle, public participation, pillar of the Aarhus Convention. This can be seen in litigation, as well as in political advocacy, both domestically and at the international (Aarhus) level. Interviews with some key actors in this area and analysis of published documents provide insights into NGO decision-making. The limits of law become clear—Aarhus rights are made real only through the commitment of governments and civil society. A nuanced combination of internal and external factors contributes to explaining the lack of NGO attention to Aarhus’ middle pillar. We may also see some indications that NGOs envisage participation as a process properly dominated by expertise. This is far from uniform, however, and other parts of the community clearly appreciate and value the significance of lay participation in the environmental arena.","PeriodicalId":46437,"journal":{"name":"Journal of Environmental Law","volume":" ","pages":""},"PeriodicalIF":1.9,"publicationDate":"2023-08-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44457456","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Internationally, we are in the midst of a shift from an environmental legal regime focussed solely on protection to one encompassing restoration. In the coastal wetland context, this move is especially needed due to the significant legacy of past losses. This article welcomes this shift, but advocates for a legal framework that embeds landscape-scale restoration from the outset, moving us from a siloed focus on single ecosystem services and projects. This argument is made by reference to learnings from the high level of fragmentation in the environmental protection space and by reference to the literature on ecological restoration and nature-based solutions. It will also use a recent example from Australia—the Blue Carbon methodology—to illustrate that momentum towards coastal restoration in legal frameworks is occurring, leaving us with a time-limited opportunity to ensure that this landscape-scale focus is embedded into restoration law before a siloed focus becomes entrenched.
{"title":"From the Silo to the Landscape: The Role of Law in Landscape-scale Restoration of Coastal and Marine Ecosystems","authors":"Justine Bell-James","doi":"10.1093/jel/eqad027","DOIUrl":"https://doi.org/10.1093/jel/eqad027","url":null,"abstract":"Abstract Internationally, we are in the midst of a shift from an environmental legal regime focussed solely on protection to one encompassing restoration. In the coastal wetland context, this move is especially needed due to the significant legacy of past losses. This article welcomes this shift, but advocates for a legal framework that embeds landscape-scale restoration from the outset, moving us from a siloed focus on single ecosystem services and projects. This argument is made by reference to learnings from the high level of fragmentation in the environmental protection space and by reference to the literature on ecological restoration and nature-based solutions. It will also use a recent example from Australia—the Blue Carbon methodology—to illustrate that momentum towards coastal restoration in legal frameworks is occurring, leaving us with a time-limited opportunity to ensure that this landscape-scale focus is embedded into restoration law before a siloed focus becomes entrenched.","PeriodicalId":46437,"journal":{"name":"Journal of Environmental Law","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136351105","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Journal Article Significant International Environmental Law Developments: 2022–2023 Get access James Harrison James Harrison Professor of Environmental Law, University of Edinburgh, Edinburgh, UK james.harrison@ed.ac.uk Search for other works by this author on: Oxford Academic Google Scholar Journal of Environmental Law, eqad028, https://doi.org/10.1093/jel/eqad028 Published: 26 August 2023
{"title":"Significant International Environmental Law Developments: 2022–2023","authors":"James Harrison","doi":"10.1093/jel/eqad028","DOIUrl":"https://doi.org/10.1093/jel/eqad028","url":null,"abstract":"Journal Article Significant International Environmental Law Developments: 2022–2023 Get access James Harrison James Harrison Professor of Environmental Law, University of Edinburgh, Edinburgh, UK james.harrison@ed.ac.uk Search for other works by this author on: Oxford Academic Google Scholar Journal of Environmental Law, eqad028, https://doi.org/10.1093/jel/eqad028 Published: 26 August 2023","PeriodicalId":46437,"journal":{"name":"Journal of Environmental Law","volume":"84 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135181682","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Discussions on how the public engages with environmental information within environmental governance matters are primarily centred around the supply of environmental information to the public by the state. However, this focus downplays the importance of environmental information held by members of the public and the difficulties that individuals can experience when submitting such information to the state outside formal environmental decision-making procedures. This article examines the benefits of guaranteeing a general right to submit environmental information before considering the extent to which environmental law, specifically the Aarhus Convention, supports the creation of such a right. The article then concludes by constructing a hypothetical regime to implement the proposed right, identifying how the proposed right can be balanced against the needs of the state and points of divergence between this hypothetical regime and the current environmental information regime set out in the Aarhus Convention.
{"title":"Exploring a Right to Submit Environmental Information Under International Environmental Law","authors":"S. Whittaker","doi":"10.1093/jel/eqad025","DOIUrl":"https://doi.org/10.1093/jel/eqad025","url":null,"abstract":"\u0000 Discussions on how the public engages with environmental information within environmental governance matters are primarily centred around the supply of environmental information to the public by the state. However, this focus downplays the importance of environmental information held by members of the public and the difficulties that individuals can experience when submitting such information to the state outside formal environmental decision-making procedures. This article examines the benefits of guaranteeing a general right to submit environmental information before considering the extent to which environmental law, specifically the Aarhus Convention, supports the creation of such a right. The article then concludes by constructing a hypothetical regime to implement the proposed right, identifying how the proposed right can be balanced against the needs of the state and points of divergence between this hypothetical regime and the current environmental information regime set out in the Aarhus Convention.","PeriodicalId":46437,"journal":{"name":"Journal of Environmental Law","volume":" ","pages":""},"PeriodicalIF":1.9,"publicationDate":"2023-08-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45434751","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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